The current law regarding flag burning derives from the Texas v. Johnson case, in which the court determined whether Gregory Lee Johnson was rightfully convicted and sentenced to one year in prison for burning a flag in protest of President Ronald Reagan. The court was presented with the issue of whether flag burning constitutes "symbolic speech" protected by the First Amendment.

Joined by Justices Thurgood Marshall, Harry A. Blackmun, Antonin Scalia and Anthony M. Kennedy, Justice William J. Brennan wrote the majority opinion, stating, "The First Amendment literally forbids the abridgment only of 'speech,' but we have long recognized that its protection does not end at the spoken or written word."

In dissent, Chief Justice William Rehnquist, Justice Stevens, Justice White and Justice O'Connor argued the flag's unique status as a symbol of national unity outweighed "symbolic speech" concerns. Therefore, the government could lawfully prohibit flag burning.

As recently as 2006, Congress attempted to amend the Constitution to prohibit flag desecration, with the effort failing in the Senate by one vote.

With a vacant seat on the Supreme Court, Donald Trump will have the ability to appoint at least one Supreme Court justice in his first term. A conservative-leaning Supreme Court could mean potential constitutional amendments to laws regarding abortion, climate change and the First Amendment.

While it is unclear what spurred Trump's 7 a.m. tweet, Hampshire College in Massachusetts recently decided to cease flag flying on campus after one was burned in the wake of the billionaire businessman's election victory.

When asked about the issue in a Tuesday morning interview with CNN, Rep. Sean Duffy (R-WI) said he disagreed with the president-elect, saying, "I don't think we want to make this a legal issue."